Tuesday, June 25, 2024

Can you or can't you (explain)** if you can amend a power to amend

View Legal blog - Can you or can't you (explain)** if you can amend a power to amend by Matthew Burgess

Posts over recent weeks have considered various aspects of the extent of authority created for a trustee by a general power of variation under a trust deed.

Another useful case in this area is the decision in University of Adelaide v Attorney-General (SA) [2018] SASC 82.

Relevantly, the court confirmed that:
  1. Where a power of amendment has been included in a trust deed, there must be compliance with any procedural or substantive restrictions on its exercise.
  2. As a general principle of construction of trust deeds, a 'trustee cannot utilise its power of amendment of the trust deed to remove restrictions on its power of amendment' (see Retail Employees Superannuation Pty Ltd v Pain [2016] SASC 121).
  3. Even in the absence of express restrictions, it would seem implicit that a power of amendment cannot be exercised to amend itself (see a case featured in a number of previous posts, namely Jenkins v Ellett [2007] QSC 154).
Despite the above conclusions, the decision in the case of Re McGowan & Valentini Trusts [2021] VSC 154 (as also featured in other View posts) essentially distinguished the above summary.

This was on the basis that where there is an extremely wide power of amendment in a trust deed it should be read and interpreted according to its natural meaning, notwithstanding what might otherwise be a general principle of construction.

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** For the trainspotters, the title of today's post riffed from The Who and the song 'I Can't Explain'.

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